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Ingutia v. Bauxter: US District Court : IMMIGRATION - lawful entry plus residence is not same as legal permanent residence; so not made US citizen by mom's naturalization

and L.K.I.,
Civil File No. 08‐1503 (MJD/JSM)
DAVID BAUXTER, Director of
Seattle Passport Office; SEATTLE
CZECHOWICZ, Social Security
Administration Public Affairs Specialist;
Security Administration Public Affairs
Specialist; and MICHAEL B. MUKASEY,
United States Attorney General;
Marcus A. Jarvis, Jarvis & Associates, PC, Counsel for Plaintiffs.
Mary L. Trippler, United States Attorneys Office, Counsel for Defendants.
This matter is before the Court on Defendants Motion to Dismiss [Docket
No. 6], Plaintiffs Motion for a Temporary Restraining Order [formerly Docket
No. 2], Plaintiffs Motion for Joinder [Docket No. 12], and Plaintiffs Motion in
Opposition to Respondents Motion to Dismiss and Motion to Join an Interested
Party [Docket No. 22]. The Court heard oral argument on June 24, 2008. On June
27, 2008, the Court issued an Order granting Defendants Motion to Dismiss and
denying Plaintiffs Motion for a Temporary Restraining Order. The Order stated
that a memorandum of law would follow. Accordingly, the Court issues the
following memorandum of law.
A. Factual Background
Plaintiff LKI is a citizen of Kenya, born in 1990, who entered the United
States on July 26, 2001, on a B‐2 non‐immigrant visa for pleasure, with an
extended authorized period of stay ending on January 25, 2003. (Pls. Exs. 2‐ 4.)
LKI currently lives in Brooklyn Park, Minnesota. (Pls. Ex. 11.)
In December 2002, LKI filed a Form I‐539, seeking to extend her nonimmigrant
stay. (Pls. Ex. 4.) Before the Form I‐539 was adjudicated, LKIs
mother, Plaintiff Priscah Ingostse Ingutia (Mother) filed a Form I‐130, petition
for alien relative. Mother requested that the U.S. Citizenship and Immigration
Services (USCIS) defer LKIs current status . . . until I can sponsor [her] as a
U.S. citizen. (Pls. Exs. 4‐5.) On August 24, 2007, the Form I‐539 was denied
because USCIS determined that, based on the I‐130 and deferment request, LKI
intends to remain in the United States permanently, was considered an intending
immigrant, and was, therefore, precluded from the visitor classification and an
extension. (Pls. Ex. 4.)
LKI asserts that she has not left the United States since she first entered it.
On February 13, 2008, Mother was granted U.S. citizenship. (Pls. Ex. 1.)
She has also been issued a U.S. passport. (Pls. Ex. 8.)
LKI recently applied for a passport from the U.S. Department of State,
Seattle Passport Agency. On February 22, 2008, March 12, 2008, and March 24,
2008, the State Department requested that LKI submit further information,
including a certificate of citizenship or other proof of citizenship in order to
process her application. (Pls. Ex. 6.) The State Department specifically stated
that if a certificate of citizenship had not been obtained, LKI should submit a
foreign birth certificate and evidence of admission into the United States for
permanent residence. (Id.) LKI cannot provide the requested documentation
because she has no certificate of citizenship and has not been admitted into the
United States for permanent residence.
On June 11, 2008, LKI applied for a social security card. (Pls. Ex. 11.) The
Social Security Administration (SSA) informed LKI that a card could not be
issued until she provided documents to show that she was a U.S. citizen or had
lawful alien status permitting her to work in the United States, but LKI has not
done so. (Pls. Ex. 12.) See 20 C.F.R. 422.107.
On March 7, 2008, LKI filed a Form N‐600, an application for a certificate of
citizenship. (Pls. Ex. 7.)
B. Procedural Background
On June 3, 2008, Plaintiffs filed a Petition for Writ of Mandamus,
Declaratory Judgment and Injunctive Relief in this Court. They alleged Count
One, Substantive Due Process Violation, and Count Two, Procedural Due Process
Violation. The named Defendants are David Bauxter, head of the Seattle
Passport Office; the Seattle Passport Agency; Jim Czechowicz, public affairs
specialist for the SSA; Rhonda Whitenack, public affairs specialist for the SSA;
and Michael Mukasey, U.S. Attorney General (collectively the Government).
On that same date, Plaintiffs also filed a Motion for Temporary Restraining
Order. Plaintiffs ask that the Court order USCIS to immediately issue a certificate
of citizenship to LKI; order the SSA to immediately issue a social security card to
LKI; and order the Seattle Passport Agency to immediately issue a U.S. passport
to LKI.
On June 13, Defendants filed a Motion to Dismiss. On June 18, Plaintiffs
filed a Motion for Joinder seeking to join Rebecca Arsenault‐Herize, acting
supervisory adjudications officer of the USCIS St. Paul Field Office.
The Court heard oral argument on all motions before it on June 24, 2008.
On June 27, 2008, the Court issued an Order granting Defendants Motion to
Dismiss and denying Plaintiffs Motion for a Temporary Restraining Order. The
Order stated that this memorandum of law would follow.
A. Statutory Framework
Plaintiffs assert that the Court has jurisdiction under the Constitution, the
Immigration and Nationality Act of 1952 (INA), 8 U.S.C. 1503(a), and the
Administrative Procedure Act. They also assert that the Court may have
jurisdiction under 28 U.S.C. 1331, federal question jurisdiction, and may grant
relief under the Declaratory Judgment Act, 28 U.S.C. 2201, and the All Writs
Act, 28 U.S.C. 1651. They also allege that the Court has mandamus jurisdiction
under 28 U.S.C. 1361.
The INA provides that
If any person who is within the United States claims a right or
privilege as a national of the United States and is denied such right
or privilege by any department or independent agency, or official
thereof, upon the ground that he is not a national of the United
States, such person may institute an action under the provisions of
section 2201 of Title 28 against the head of such department or
independent agency for a judgment declaring him to be a national of
the United States . . .
8 U.S.C. 1503(a).
LKI asserts that she obtained U.S. citizenship when Mother was
naturalized due to the Child Citizenship Act (CCA). The CCA provides:
(a) A child born outside of the United States automatically becomes a
citizen of the United States when all of the following conditions have
been fulfilled:
(1) At least one parent of the child is a citizen of the United
States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and
physical custody of the citizen parent pursuant to a lawful
admission for permanent residence.
8 U.S.C. 1431.
B. Whether LKI Is a U.S. Citizen
The parties agree that LKI has met the first and second elements of the
CCA: LKIs mother has become a naturalized U.S. citizen and LKI is under the
age of 18. The parties dispute whether LKI has met the portion of the third
element requiring that LKI is residing in the United States . . . pursuant to a
lawful admission for permanent residence.
To meet third element, LKI must have legal permanent residence (LPR)
status in order to qualify for derivative citizenship under the CCA. It is not
sufficient, as LKI argues, that she entered the United States legally and is still a
minor residing in the United States. In order to receive derivative citizenship
under the CCA, LKI must prove the essential fact[] . . . that [s]he was residing in
the United States as a permanent legal resident. Bagot v. Ashcroft, 398 F.3d 252,
257 (3d Cir. 2005) (analyzing predecessor statute to CCA). The term lawfully
admitted for permanent residence is defined as the status of having been
lawfully accorded the privilege of residing permanently in the United States as
an immigrant in accordance with the immigration laws, such status not having
changed. 8 U.S.C. 1101(a)(20). Although LKI was lawfully admitted to the
United States when she arrived in July 2001, she was admitted as a visitor and is
not residing in the United States pursuant to lawful admission for permanent
Because LKI is not yet a permanent legal resident of the United States, she
does not qualify for citizenship under the CCA. During briefing, LKI also
mentioned 8 U.S.C. 1433 as a possible alternative ground for citizenship, but
LKI has not pled or shown evidence supporting a claim under 1433.
LKI has not met the requirements for citizenship under the CCA and the
Court cannot use its equitable powers to confer citizenship or other benefits in
violation of those requirements. INS v. Pangilinan, 486 U.S. 875, 883‐84 (1988).
LKIs claim for U.S. citizenship must fail.
C. INA Claim
Because LKI is not a U.S. citizen or national, she cannot state a claim under
1503. In order to obtain a U.S. passport, LKI must provide proof that she is a
U.S. citizen. A valid U.S. passport has the same force and effect as proof of
United States citizenship as certificates of naturalization or of citizenship. 22
U.S.C. 2705. Passports shall only be issued to persons owing allegiance . . . to
the United States. 22 U.S.C. 212.
To be eligible for a social security card, an application must show evidence
of age, U.S. citizenship or status such as LPR, which permits an immigrant to
engage in employment in the United States, and of identity. 42 U.S.C.
405(c)(2)(B)(i) (I‐III); 20 C.F.R. 422.107. Here, LKI cannot provide any
documents to prove citizenship or another non‐citizenship status that would
allow her to work in the United States and obtain a social security card because
she does not have citizenship, LPR, or another qualifying status.
Because LKI is not a U.S. national, her claim under 1503(a) cannot
survive. Additionally, she has not pled any final agency action has been taken.
Moreover, under 1503, LKI can only sue the agency or department heads.
Defendants the Seattle Passport Agency, Czechowicz, and Whitenack are not the
heads of a department or independent agency. Similarly, Arsenault‐Herize,
whom LKI seeks to join, is not the head of a department or agency.
D. Alternative Grounds for Relief
Because LKI is not a U.S. citizen and does not have LPR status, she cannot
show that she is entitled to relief under any of the other possible grounds that she
mentions, such as the Administrative Procedure Act; 28 U.S.C. 1331; the
Declaratory Judgment Act, 28 U.S.C. 2201; the All Writs Act, 28 U.S.C. 1651;
due process grounds, or mandamus jurisdiction under 28 U.S.C. 1361. For
example, because LKI does not meet the statutory requirements for citizenship
or for an immigration status making her eligible for a social security card, she
cannot establish that any defendant has a clear non‐discretionary duty to act, and
her request for a writ of mandamus must be denied. See Castillo v. Ridge, 445
F.3d 1057, 1060‐61 (8th Cir. 2006) (A district court may grant a writ of
mandamus only in extraordinary situations and only if: (1) the petitioner can
establish a clear and indisputable right to the relief sought, (2) the defendant has
a nondiscretionary duty to honor that right, and (3) the petitioner has no other
adequate remedy.) (citation omitted).
LKI has not complied with the clear requirements of the CCA. Nor can she
provide proof of citizenship or LPR or other qualifying immigration status as
required in order to obtain a U.S. passport or social security card. There is no
allegation or evidence that the Government is improperly applying its statutes to
LKI. Nor is there a final agency action in this case. The agencies implicated here
have the competence and ability to resolve the issues in this matter and grant the
relief sought. LKI has not shown that exhaustion of administrative remedies
would be futile because the Government is biased or has predetermined the
issue. She has not raised constitutional issues and exhaustion will not cause
undue prejudice or unreasonable delay. In light of the evidence provided by LKI
that Mother asked the Government to defer action on LKIs legal status until
Mother became as U.S. citizen, there is no evidence of undue delay by the
Government. Therefore, LKI is not entitled to the relief that she seeks under any
of the above statutes or doctrines.
In addition, the named Defendants are not the proper defendants in this
matter. As previously explained, the Seattle Passport Agency, Czechowicz,
Whitenack, and Arsenault‐Herize are not the heads of a department or
independent agency, or the Government decision makers in this matter. Also,
Attorney General Michael B. Mukasey is not a proper defendant because the
Secretary of the Department of Homeland Security now assumes his duties with
regard to naturalization. See Taylor v. Barnhart, 399 F.3d 891, 895 n.2 (8th Cir.
E. Motion for Joinder
Plaintiffs seek to amend their Petition and join Rebecca Arsenault‐Herize,
acting supervisory adjudications office of the USCIS St. Paul Field Office, under
Federal Rule of Civil Procedure 19(a). This motion is denied because Arsenault‐
Herize is not the head of an agency or department. Nor has she issued a final
agency action. Additionally, for the reasons previously explained, LKI does not
state a claim for grant of citizenship against her.
At this time, LKI has not achieved LPR status. Because LKI has not
achieved LPR status, she is not be eligible for naturalization under the CCA. LKI
cannot succeed on any of her claims she is not entitled to citizenship or,
therefore a passport, and, at this point, she does not have the immigration status
required to obtain a social security card. The Court cannot exercise its equitable
powers to grant LKI these benefits in contravention of the statutes. Because the
Government is entitled to dismissal, LKIs motion for a temporary restraining
order is denied as moot.
For the foregoing reasons, the Court issued its Order on June 27, 2008.
Dated: July 3, 2008 s / Michael J. Davis
Chief Judge Michael J. Davis
United States District Court


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